Citation Nr: 0108216
Decision Date: 03/20/01 Archive Date: 03/26/01
DOCKET NO. 98-05 028 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to a higher initial rating in excess of 30
percent for a right upper arm scar, residual of excision of
sinus tract.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
M. Vavrina, Associate Counsel
INTRODUCTION
The veteran had active duty from January 1965 to January
1969.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York, which, in part, granted service connection
for a right upper arm scar, residual of excision of sinus
tract, and assigned a 10 percent rating, effective from
February 27, 1995.
During the pendency of the appeal, in an August 2000 rating
decision, the RO assigned a 30 percent rating for the
veteran's right upper arm disability, effective
February 27, 1995. As the 30 percent rating is less than the
maximum available under the applicable diagnostic criteria,
the claim remains viable on appeal. See AB v. Brown, 6 Vet.
App. 35, 38 (1993).
In his VA Form 9, the veteran requested a Travel Board
hearing at the RO, but he failed to appear for the hearing
scheduled in September 1999. As the veteran has neither
submitted good cause for failure to appear or requested to
reschedule the hearing, the request for hearing is deemed
withdrawn and the Board will continue with the appeal. See
38 C.F.R. § 20.704 (d) (2000).
In a February 2000 remand opinion, the Board required further
development, including a medical opinion. VA examinations
were performed and the reports associated with the veteran's
claims file. The appeal is now before the Board for
consideration.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's claim.
2. The veteran's service-connected right upper arm scar,
residual of excision of a sinus tract disorder is manifested
by subjective complaints of weakness, fatigue-pain and loss
of power with repetitive motion, objective findings of a
sensitive scar, which is not poorly nourished, or productive
of limitation of motion or function or with repeated
ulceration and is not shown to result in more than moderately
severe muscle injury.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 30 percent
rating for right upper arm scar, residual of excision of
sinus tract, have not been met. 38 U.S.C.A. § 1155 (West
1991); Veterans Claims Assistance of Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 4.20, 4.73
(Diagnostic Code 5305), 4.118 (Diagnostic Code 7804) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
In a November 1996 rating decision, the RO granted service
connection for a right upper arm scar, residual of excision
of sinus tract, and assigned a 10 percent rating, effective
from February 27, 1995. That decision also denied service
connection for a right thigh scar, skin graft donor site,
which the veteran did not appeal. During the pendency of the
appeal, in an August 2000 rating decision, the RO assigned a
30 percent rating for the veteran's right upper arm
disability, effective February 27, 1995. The veteran is
appealing the original assignment of a disability rating for
his right upper arm disability, following an award of service
connection, and essentially contends that the assigned rating
does not accurately reflect the severity of his disability.
The Board is satisfied that all relevant facts have been
properly developed, and no further assistance to the veteran
is required to comply with the duty to assist the veteran
mandated by 38 U.S.C. § 5103A of the Veterans Claims
Assistance of Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000). In this connection, the Board notes that this
case was remanded to provide the veteran another opportunity
to submit information for the RO to obtain medical and
employment records that might be relevant to his claim as
well as scheduling him for another examination. The veteran
did not provide any additional information and this was noted
in the Supplemental Statement of the Case provided to him.
The veteran is advised that the duty to assist is not a one-
way street. "If a veteran wishes help, he cannot passively
wait for it in those circumstances where he may or should
have information that is essential in obtaining the putative
evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
However, the Board finds that the July 2000 VA examination
done in response to the Board's remand, evaluating the status
of the veteran's disability and which considered his reported
employment history is adequate for rating purposes and
further development is not warranted.
Service medical records show the veteran reported to sick
call in December 1967 with a sterile abscess on his right
upper arm, at the site of a plague inoculation given a month
earlier. The abscess was opened and drained and packed with
sterile dressing. On a follow-up evaluation the same month,
the wound looked good but it was noted that a skin graft
would be needed. Due to draining, the area was incised and
sutured. The sutures were removed in January 1968, and the
wound healed without infection except for a small area
measuring 1-centimeter in diameter, which drained
continuously. The veteran was discharged the same month with
outpatient follow-up. In April 1968, the veteran was
hospitalized and underwent excision of the chronic
granulation tissue and the sinus tract. A split thickness
skin graft from the right thigh was performed later the same
month. The skin graft was left open to the air and a
complete take was noted. In May 1968 the veteran was
discharged to full duty with outpatient follow-up. The
veteran's December 1968 separation examination report noted a
5-inch scar on the right arm, not considered disabling.
The veteran submitted a copy of an October 1992 office visit
statement noting that he was seen for pain in both hands.
There was no reference to his scar residuals.
At a July 1996 VA examination, the veteran reported that the
site of the healed skin graft was hypersensitive and
interfered with his work when he had to use power tools. He
stated that he was right-handed. The veteran said that his
upper thigh donor site had no symptoms but that he
occasionally had tingling sensations in his hands which the
attributed to irritation of the nerves of his right arm. On
examination, the upper thigh donor site showed no residual
scarring of any significance. The triceps region of the
right arm revealed a well-healed grafted area measuring 3.5
by 1.25-inches; it was hypersensitive; and the skin graft
scarring was attached to the triceps underneath with a loss
of protective fascia so that the scar adhered to the
underlying triceps. The scar was extremely sensitive to the
lightest touch. The veteran had full range of motion of the
arm and the elbow and his right hand. There was a loss of
subcutaneous fat subjacent to the scarred area on the lateral
aspect of the right arm. The conclusion was status post skin
graft from the thigh to the right arm with functional
impairment and hypersensitivity and a loss of subcutaneous
fat at the site of the graft. The examiner added that it
represented a permanent defect.
In a November 1996 rating decision, the RO granted service
connection for the veteran's right upper arm scar and
assigned a 10 percent rating under 38 C.F.R. § 4.188,
Diagnostic Code 7804. The RO stated that an extraschedular
rating under 38 C.F.R. § 3.321 (2000) was not warranted.
In February 2000, the Board indicated that the RO apparently
had not considered whether the veteran's disability caused a
loss of function under any other potential diagnostic code
and remanded the case for further development, including a
medical examination and opinion. The remand informed the
veteran of his obligation to
cooperate by providing the additional information and
reporting to the scheduled examination and that his failure
to cooperate might result in adverse action under 38 C.F.R.
§§ 3.158, 3.655 (2000).
A March 2000 RO letter asked the veteran to submit the
additional medical and employment information as instructed
by the Board's remand. The veteran did not respond or submit
any new information and this was noted in the information
provided to the veteran by the RO.
At the July 2000 VA examination, the veteran complained that
his right hand and arm could not maintain the repetitive
motion required of many of the jobs for which he was
qualified and denied pain or tenderness on palpation. On
examination, the veteran had a 12 x 3.5-centimeter, leaf-
shaped scar on his right upper arm with the widest part in
the middle. The scar was smooth and flat but visible and not
disfiguring. It was sensitive to the touch and somewhat
depressed because of the loss of subcutaneous fat tissue.
The scar partially adhered to the underlying fascia, but
there was no ulceration, breakdown, inflammation, edema or
keloid formation. The scar was sensitive to pinprick and
light touch distally from the wound to the fingertips. The
veteran had no loss of range of motion of his right arm and
his reflexes were 2+, radial and brachial. The veteran's
biceps and triceps were well-developed and it appeared that
he had been using his arm, as the circumference of the right
arm was approximately 1/8 centimeter less than the left arm,
due to loss of subcutaneous fat but not muscle tissue. The
assessment was that the right upper arm scar did not cause
any functional impairment for performance of daily
activities. However, due to its size and adherence to the
underlying fascia, the scar, along with his back disorder,
prevented the veteran from working in a repetitive motion
job.
Analysis
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Ratings Disabilities (rating schedule).
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10
(2000). Separate diagnostic codes identify the various
disabilities and the criteria for specific ratings. If two
ratings are potentially applicable, the higher rating will be
assigned if the disability picture more nearly approximates
the criteria required for that rating; otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7. After careful
consideration of the evidence, any reasonable doubt remaining
is resolved in favor of the veteran. 38 C.F.R. § 4.3. The
veteran's entire history is reviewed when making a disability
evaluation. 38 C.F.R. § 4.1. Since the present appeal
arises from an initial rating decision which established
service connection and assigned the initial disability
ratings, it is not the present level of disability which is
of primary importance, but rather the entire period is to be
considered to ensure that consideration is given to the
possibility of staged ratings; that is, separate ratings for
separate periods of time based on the facts found. See
Fenderson v. West, 12 Vet. App. 119 (1999).
Ratings for functional impairment of the upper extremities
are based upon which extremity is the major (dominant) or
minor (nondominant) extremity, that is, the one predominantly
used by the individual. Only one extremity is considered to
be major and a person is presumed to be right-handed unless
there is evidence of left-handedness. 38 C.F.R. § 4.69
(2000). Since the veteran indicated at his VA examination
that he was right-handed, the rating for the right arm is to
be made on the basis of that extremity being the major
extremity.
During the pendency of this appeal, VA issued new regulations
for evaluating disabilities due to muscle injuries (the
current regulations). See 62 Fed. Reg. 30235-30240 (1997).
These changes became effective July 3, 1997. See 38 C.F.R.
§§ 4.47-4.56, 4.69 and 4.72 (2000). The RO considered both
sets of rating criteria with respect to the veteran's claim
in its August 2000 supplemental statement of the case, which
assigned the 30 percent rating. Accordingly, the Board has
determined that the appellant would not be prejudiced if the
Board proceeded with appellate consideration of the claim
presented. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Where laws or regulations change after a claim has been filed
or reopened and before the administrative or judicial process
has been concluded, the version most favorable to the veteran
applies, unless Congress has provided otherwise or has
permitted the Secretary of Veterans Affairs (Secretary) to do
otherwise and the Secretary has done so. Karnas v.
Derwinski, 1 Vet. App. 308, 312-313 (1991). In reviewing
this case, the Board, like the RO, has evaluated the
veteran's service-connected right upper arm disability under
both sets of rating criteria to determine whether the veteran
is entitled to a higher initial evaluation under either set.
The Board will also consider the veteran's claim under both
criteria.
Factors for consideration in the rating of muscle
disabilities are set forth in 38 C.F.R. § 4.56. The old
version of that section provided that a moderately severe
disability of the muscles is characterized by evidence of a
through-and-though or deep-penetrating wound by a high
velocity missile of small size or a large missile of low
velocity, with debridement or with prolonged infection, or
with sloughing of soft parties, or intermuscular
cicatrization. Service department records or other
sufficient evidence showing hospitalization for a prolonged
period in service for treatment of a wound of severe grade
should be considered. Records in the file of consistent
complaints of cardinal symptoms of muscle wounds should also
be noted. Evidence of unemployability due to an inability to
keep up with work requirements may be considered. Objective
findings should include relatively large entrance and (if
present) exit scars so situated as to indicate the track of a
missile through important muscle groups. Indications on
palpation of moderate loss of deep fascia, or moderate loss
of muscle substance or moderate loss of normal firm
resistance of muscles compared with the sound side may be
considered. Tests of strength and
endurance of the muscle groups involved may also give
evidence of marked or moderately severe loss. 38 C.F.R.
§ 4.56(c) (1996).
A severe muscle disability results from a through-and-through
or deep-penetrating wound due to a high velocity missile, or
large or multiple low velocity missiles, or with shattering
bone fracture or open comminuted fracture with extensive
debridement, prolonged infection, or sloughing of soft parts,
with intermuscular binding and cicatrization and service
medical records or other evidence showing hospitalization for
a prolonged period for treatment of the wound. Objective
findings may include a ragged, depressed and adherent scars
indicating wide damage to muscle groups in missile track,
palpation showing moderate or extensive loss of deep fasciae
or muscle substance, or soft flabby muscles in wound area and
abnormal swelling and hardening of muscles in contraction.
Tests of strength, endurance, or coordinated movements
compared with decreased muscles of the nonmajor side
indicates severe impairment of function. 38 C.F.R. §
4.56(d).
If present, the following are also signs of severe muscle
disability: X-ray evidence of minute multiple scattered
foreign bodies indicating intermuscular trauma and explosive
effect of the missile; adhesion of scar to one of the long
bones, scapula, pelvic bones, sacrum or vertebrae, with
epithelial filling over the bone rather than true skin
covering in an area where bone is normally protected by
muscle; diminished muscle excitability to pulsed electrical
current and electrodiagnostic tests, visible or measurable
atrophy; adaptive contraction of an opposing group of
muscles; atrophy of muscle groups not in the track of the
missile; induration or atrophy of an entire muscle following
simple piercing by a projectile. 38 C.F.R. § 4.56(d).
Under the current version of the rating criteria, 38 C.F.R.
§ 4.56 provides that: (a) an open comminuted fracture with
muscle or tendon damage will be rated as a severe injury of
the muscle group involved unless, for locations such as in
the wrist or over the tibia, evidence establishes that the
muscle damage is minimal; (b) a through-and-through injury
with muscle damages shall be evaluated as no less than a
moderate injury for each group of muscles damaged; (c) for VA
rating purposes, the cardinal signs and symptoms of muscle
disability are loss of power, weakness, lowered threshold of
fatigue, fatigue-pain, impairment of coordination and
uncertainty of movement; and under Diagnostic Codes 5301
through 5323, disabilities resulting from muscle injuries
shall be classified as slight, moderate, moderately severe or
severe. 38 C.F.R. § 4.56 (2000).
The current version of 38 C.F.R. § 4.56 is otherwise
basically the same as the old version. Additionally, the
current provisions of 38 C.F.R. § 4.56(a) and (b) were
formerly contained in 38 C.F.R. § 4.72, which has been
rescinded. For the sake of clarity and in order to show that
both versions have been fully considered by the Board, the
current version follows.
Under 38 C.F.R. § 4.56(d)(3), a moderately severe disability
of muscles: (i) Type of injury: through-and-through or deep-
penetrating wound by small high velocity missile or large
low-velocity missile, with debridement, prolonged infection,
or sloughing of soft parts and intermuscular scarring; (ii)
History and complaint: service department record or other
evidence showing hospitalization for a prolonged period of
treatment for the wound; record of consistent complaint of
cardinal signs and symptoms of muscle disability as defined
in paragraph (c) of this section and, if present, evidence of
inability to keep up with work requirements; (iii) Objective
findings: entrance and (if present) exit scars, indicating
track of missile through one or more muscle groups;
indications on palpation of loss of deep fascia, muscle
substance, or normal firm resistance of muscles compared with
sound side demonstrate positive evidence of impairment.
Under the old and current criteria for 38 C.F.R. § 4.78,
Diagnostic Code 5305, which pertains to Muscle Group V,
including the biceps, brachialis, and brachioradialis, and
which affect elbow supination and flexion of the elbow, a
moderately severe injury will be rated as 30 percent
disabling if of the major extremity and as 20 disabling if
involving the minor extremity. A severe injury will be rated
as 40 percent disabling if involving the major extremity and
as 30 disabling if involving the minor extremity. 38 C.F.R.
§ 4.73, Diagnostic Code 5305 (2000).
For scars that are superficial, poorly nourished, with
repeated ulceration a 10 percent evaluation is provided under
38 C.F.R. § 4.118, Diagnostic Code 7803. For scars that are
superficial, tender and painful on objective demonstration, a
10 percent evaluation is provided under 38 C.F.R. § 4.118,
Diagnostic Code 7804. For other scars the basis of
evaluation is rated on limitation of function of affected
part in accordance with 38 C.F.R. § 4.118, Diagnostic Code
7805. 38 C.F.R. § 4.118 (2000).
The provisions of 38 C.F.R. § 4.14 preclude the assignment of
separate ratings for the same manifestations under different
diagnoses. The critical element is that none of the
symptomatology for any of the conditions is duplicative of or
overlapping with symptomatology of the other conditions.
Esteban v. Brown, 6 Vet. App. 259 (1995). Impairment
associated with the veteran's service-connected disability
may be rated separately unless it constitutes the same
disability or the same manifestation. Id., at 261. The
critical element is that none of the symptomatology is
duplicative or overlapping; the manifestations of the
disabilities must be separate and distinct. Id., at 261-62.
When an unlisted condition is encountered, it should be rated
under a closely related disease or injury in which not only
the functions affected, but the anatomical localization and
symptomatology are closely analogous. 38 C.F.R. § 4.20
(2000)
After considering the various applicable rating criteria, the
Board concurs with the RO that the rating for right upper arm
scar, residual of excision of sinus tract, is most
appropriately rated by analogy to a muscle wound of the right
upper extremity, in both location and symptomatology, rather
then simply as a scar. 38 C.F.R. § 4.20. The Board finds
that the disability picture as described by the veteran and
shown in the medical evidence supports no more than a finding
of moderately severe muscle injury. More than the currently
assigned 30 percent rating is not warranted. 38 U.S.C.A. §
5107(b) (West 1991); 38 C.F.R. § 4.7, Diagnostic Code 5305
(1996), (2000). In view of the nature of the veteran's upper
arm disability and the fact that the RO is rating the scar by
analogy as muscle injury the assignment of
a separate 10 percent rating for the scar under Diagnostic
Codes 7803, 7804 or 7805 is not for application. Separate
disabilities arising from a single disease entity are to be
rated separately. 38 C.F.R. § 4.25 (1999); Esteban v. Brown,
6 Vet. App. 259, 261(1994). However, the evaluation of the
same disability under various diagnoses is to be avoided.
38 C.F.R. § 4.14 (1999); Fanning v. Brown, 4 Vet. App. 225
(1993).
The manifestations of the veteran's scar and excision
residuals, in consideration of his subjective complaints and
the objective findings, results in no more than moderately
severe injury. Rating under the old criteria, the medical
findings show a large scar and loss of normal fascia. The
scar is partially adhered to the underlying fascia, but there
was no ulceration, breakdown, inflammation, edema or keloid
formation. The scar was sensitive to pinprick and light
touch distally from the wound to the fingertips. The veteran
had no loss of range of motion of his right arm, no loss of
function and his reflexes were 2+ radial and brachial.
Examination showed the muscles to be well developed and the
veteran appeared to be using his arm as the circumference of
the right arm was approximately 1/8 cm less than the left due
to loss of subcutaneous fat, but not muscle tissue. The
assessment was that the scar did not cause any functional
impairment, although the veteran had subjective complaints
that his right arm could not maintain repetitive motion.
More than moderately severe muscle injury is not demonstrated
so that a higher rating of 40 percent is not warranted.
There is no evidence of severe muscle injury, including a
through-and-through or deep penetrating wound due to a high
velocity missile, large or multiple low missiles, or
shattering bone fracture. There is no extensive scarring
indicating wide damage to the muscle groups. 38 C.F.R.
§ 4.56 (1996).
Similarly, under the current criteria, the evidence supports
a 30 percent rating and does not warrant any higher rating.
Clearly the record lacks findings that meet or more nearly
approximate severe disability warranting the next higher
rating under Diagnostic Code 5305. As stated above, there is
no evidence of severe muscle
disability, including a through-and-through or deep
penetrating wound due to a high velocity missile, large or
multiple low missiles, or shattering bone fracture or open
comminuted fracture with extensive debridement, prolonged
infection, or sloughing of soft parts, intermuscular binding
and scarring. Although the veteran's scar is depressed and
adherent, it is not ragged and does not show wide damage to
muscle groups as there is only an 1/8-centimeter difference
in circumference between the left and right arm due to loss
of subcutaneous fat tissue not muscle tissue. The examiner
indicated that the veteran had no loss of range of motion of
his right arm and that his reflexes were 2+, radial and
brachial. The examiner added that the right upper arm scar
did not cause any functional impairment for usual daily
activities, but would prevent the veteran from working in a
repetitive motion job. The examiner opined that the veteran
would be able to work at a job that did not require physical
stress on his right arm or back. Essentially, the veteran's
scar and residuals of the excision of the sinus tract have
been rated by analogy to muscle injury, rather than as a
scar. As such, this provided for the higher 30 percent
rating and is more consistent with the veteran's subjective
complaints and the actual objective evidence of tissue loss,
but findings to support a higher rating based on sever in
jury are not shown.
Conclusion
The Board finds, as the RO did in this case, that the
disability picture is not so exceptional or unusual as to
warrant a referral for an evaluation on an extraschedular
basis. For example, although the veteran contends that his
disability has interfered with his employment, he has
submitted no evidence to support his contention and the
record does not show that the veteran's service-connected
right upper arm disability has resulted in frequent
hospitalizations or caused marked interference in his
employment beyond that which is provided for under the
regular schedular standards. Indeed, it is apparent that the
veteran's subjective complaints of problems with repetitive
motion were considered and became part of the basis for
rating the scar by analogy to muscle injury and assigning the
30 percent rating. The rating schedule is primarily a guide
in the evaluation of disability resulting from all types of
diseases and injuries encountered as a result of or incident
to military service. The percentage ratings represent as far
as can practicably be determined the average impairment in
earning capacity resulting from such diseases and injuries
and their residual conditions in civil occupations.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the disability. The Board notes that in exceptional cases
where evaluations provided by the rating schedule are found
to be inadequate, an extraschedular evaluation may be
assigned which is commensurate with the veteran's average
earning capacity impairment due to the service-connected
disorder. 38 C.F.R. § 3.321(b). However, the Board believes
that the regular schedular standards applied in the current
case adequately describe and provide for the veteran's
symptoms and disability level. The record does not reflect a
disability picture that is so exceptional or unusual that the
normal provisions of the rating schedule would not adequately
compensate the veteran for his service-connected disability.
The Board does not find that the veteran's case outside the
norm so as to warrant consideration of the assignment of an
extraschedular rating. Referral of this matter for
consideration under the provisions of 38 C.F.R. § 3.321 is
not warranted. See Shipwash v. Brown, 8 Vet.App. 218, 227
(1995), and Floyd v. Brown, 9 Vet.App. 94-96 (1996).
The Board finds that the preponderance of the evidence is
against the veteran's claim for an evaluation in excess of 30
percent. In reaching this decision, the Board acknowledges
that the VA is statutorily required to resolve the benefit of
the doubt in favor of the veteran when there is an
approximate balance of positive and negative evidence
regarding the merits of an outstanding issue. However, that
doctrine is not for application in this case because the
preponderance of the evidence is against the veteran's claim.
See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38
U.S.C.A. § 5107(b) (West 1991); The Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (relevant sections of which are to be codified at 38
U.S.C.A. § 5107(b)).
ORDER
An initial rating in excess of 30 percent for a right upper
arm scar, residual of excision of sinus tract, is denied.
STEVEN L. COHN
Member, Board of Veterans' Appeals